Opposing The Confirmation of Charles W. Pickering, Sr. to The United States Court Of Appeals For The Fifth Circuit

Pickering as a Federal Judge

Most of Judge Pickering's opinions and orders on civil rights issues are unpublished, which has therefore limited our review. In the vast majority of the published and unpublished civil rights cases we reviewed, Pickering ruled against civil rights plaintiffs. Without access to the arguments, briefs, and other parts of the record in those cases, it is difficult to evaluate the specifics of these rulings. An analysis of Pickering's opinions themselves, however, is deeply troubling. In many of his opinions, Judge Pickering goes out of his way to disparage civil rights protections and plaintiffs. Usually in dicta not even necessary to his decisions, Pickering has criticized principles protecting civil rights, sought to limit their application, and denigrated those who seek to invoke civil rights laws.

For example, in several cases Judge Pickering has discussed the fundamental "one-person one-vote" principle recognized by the Supreme Court under the Fourteenth Amendment. This principle, which calls for election districts to be nearly equal in population in order to protect the equality of all voters in our democracy, has been called one of the most important guarantees of equality in our Constitution. See Wesberry v. Sanders, 376 U.S. 1, 8, 17-18 (1964) (majority opinion by Justice Black). In a lengthy criticism of the principle in one case, however, Judge Pickering called it "obtrusive" and something that legislatures have reluctantly learned they "must live with." Fairley v. Forrest County, 814 F.Supp. 1327, 1330, 1338 (S.D. Miss. 1993). In that case, the defendants conceded that a deviation of more than 25% from equality was improper, in accordance with Supreme Court rulings that deviations of more than 16.4% are presumptively unconstitutional. Id. at 1330; Connor v. Finch, 431 U.S. 407, 417-18 (1977). In dicta, however, Pickering suggested that these deviations were "relatively minor" and "de minimis" and that he might well have held that they "would not violate the Constitution" had that argument been raised. Fairley, 814 F.Supp. at 1345, 1330 n.2. Pickering also declined to order special elections as a remedy in the case, even though he acknowledged that this remedy had been ordered in previous one-person, one-vote cases by the Fifth Circuit. Id. at 1340-41, 1346.

Judge Pickering has also criticized or sought to limit important remedies provided by the Voting Rights Act. In order to redress serious problems of discrimination against African American voters in some cases, the courts (including the Supreme Court and the Fifth Circuit) have clearly recognized the propriety and importance of creating majority-black districts as a remedy under appropriate circumstances. [3] Judge Pickering, however, has severely criticized this significant form of discrimination relief. In one opinion, he called it "affirmative segregation." Bryant v. Lawrence County, 814 F. Supp. 1346, 1351 (S.D. Miss. 1993). In another opinion in the same case, he claimed that such districts produce "polarization" and complained that candidates elected in such districts "may well feel little need to accommodate the views of their minority white constituents." Id., 876 F.Supp. 122, 127 (S.D. Miss. 1995).

Judge Pickering has also suggested a narrow interpretation of a key provision of the Voting Rights Act, contrary to Supreme Court precedent. Under Section 5 of the Act, any changes in voting-related procedures in jurisdictions like Mississippi with a history of voting discrimination must be pre-cleared by the Justice Department or the federal district court in Washington D.C. to ensure that they have no discriminatory purpose or effect. The Supreme Court has made very clear that other federal courts have a limited but important role in this process; they can provide relief to voters by ensuring that proposed changes are submitted for pre-clearance, but are not themselves to evaluate or consider whether the changes are discriminatory. The Supreme Court clearly explained this protection in a case arising out of Mississippi, and has repeated it several times since.[4] In one case, however, Judge Pickering strongly suggested that the "application" of the principle that voters can sue to require Section 5 pre-clearance "should be limited" to cases where racial discrimination is specifically charged, contrary to the Act and Supreme Court precedent. Citizens' Right to Vote v. Morgan, 916 F. Supp. 601, 604 (S.D. Miss. 1996). Pickering harshly criticized the plaintiffs for even bringing that case, stating that it was "simply another of those cases which demonstrates that many citizens have come to view the federal courts as a potential solution to whatever problem comes along," a "notion" that he believed had been "fostered" by federal courts. Id.

Unpublished opinions by Pickering in a number of discrimination cases contain much more severe criticisms of civil rights plaintiffs and the use of civil rights statutes. In one case in which he rejected a race discrimination claim, Pickering harshly complained about "the side effects resulting from anti-discrimination laws," which he suggested cause people "covered by such laws" to "spontaneously react that discrimination caused" any adverse action against them. Foxworth v. Merchants Co., No. 2:95CV278PG (S.D. Miss., July 9, 1996) (slip op. at 8-9).

In two cases dismissing claims of race discrimination in employment, Pickering used identical language striking a similar theme. He wrote in both that "this case has all the hallmarks of a case that is filed simply because an adverse employment decision was made in regard to a protected minority" and that the courts "are not super personnel managers charged with second guessing every employment decision made regarding minorities."[5] Pickering similarly disparaged the plaintiff in an age discrimination case, proclaiming that the Age Discrimination in Employment Act "is not a vehicle by which any replaced worker over the age of forty may have a federal court review the merits of his job performance or the demerits of his termination." Jarrell v. F-S Prestress, Inc., No. 2:97-CV-108PG (S.D. Miss., Feb. 24, 1998) (slip op. at 11), summary judgment for def't aff'd, 166 F.3d 338 (5th Cir. 1998).

Even more questionable was Pickering's reported conduct in another discrimination case. Acting on his own motion, Pickering halted a race discrimination lawsuit filed by a local chapter of the NAACP against Dixie Electric Power Association in December 1993. In what was described as a potentially precedent-setting case, the NAACP charged that Dixie had discriminated against African American employees, and also against African American customers in terms of rate-setting and termination-of-service practices. According to a press report, immediately after the suit was filed, Pickering suspended all proceedings, issued a gag order prohibiting the parties from discussing the case publicly, and directed the two sides to explore settlement in a three month period.[6] Apparently, Pickering also suspended the requirement that Dixie file an answer stating its position on the claims.[7] In January 1994, officials of the NAACP chapter "were quoted in local press reports saying they believed the case was very important and could establish a precedent for similar cases against other rural cooperatives."[8] When Pickering learned of these comments, he reportedly issued another gag order prohibiting the parties from commenting on the case.[9] Pickering's handling of the case was one of the factors specifically mentioned by the state NAACP in opposing his nomination.

In short, Pickering's conduct as a federal judge would hardly inspire confidence by civil rights plaintiffs in his handling of civil rights cases. It does not meet his burden to demonstrate a commitment to basic civil rights principles. To the contrary, his troubling conduct in going out of his way to criticize crucial civil rights principles and remedies and to disparage and limit plaintiffs in civil rights cases documents the state NAACP's conclusion of a "hostile attitude" by Judge Pickering in such cases.